Impartial Hearing Decision

FINDINGS OF FACT & DECISION

IHRS Case Number: 526601

Student Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates of Hearings: October 3, 2019, November 15, 2019

Actual Record Close Date: December 31, 2019

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2019

For the Student:

[REDACTED]

For the District:

Parent

ESQ., Attorney

Executive Director of Special Education, REDACTED School Psychologist, REDACTED Special Education Teacher, REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 15,2019

For the Student:

[REDACTED]

For the District:

Parent

ESQ., Attorney

[REDACTED] Executive Director of Special Education, REDACTED

Director of Secondary Special Education

• • JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent for the student in a due process complaint notice dated July 1, 2019. The complaint concerns the student's eligibility for special education transportation during the 2019/20 school year (Ex. SD-2).1 When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Special Education (the "CSE") that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law§ 4402; see also 20 U.S.C. §§ 1414(d)(l)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C.

§§ 122le-3, l415(e)-(t); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student." See 8 NYCRR § 200.S(i)(l); see also 20 U.S.C. §§ 14IS(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(l)-(2), 300.507(a)(l).

1 References to the hearing transcript are noted as "R." References to exhibits admitted into evidence are noted as "Ex."

An impartial hearing officer ("IHO") typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ J415(f)(2)(A), (h)(l)-(3); 34 C.F.R.

§§ 300.52l(a)(l)-(4); 8 NYCRR §§ 200.5U)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R.

§§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.50)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law§ 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer ("SRO"). See N.Y. Educ. Law§ 4402(2); see also 20 U.S.C. § 1415(g)(l);,34 C.F.R. § 300.514(b)(l); 8 NYCRR

§ 200.5(k).

PROCEDURAL HISTORY

On July 11, 2019, the Board of Education of the REDACTED School District (the "District") appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated July 19, 2019, the District denied each and every allegation contained in the compliant (Ex. IHO-1). See 8 NYCRR §§ 200.5(i)(4)-(5). A prehearing conference with the parties was held on September 4, 2019, to clarify the hearing issues and set a date for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). Hearings on the merits of this matter were held on October 3, 2019 and November 15, 2019. 2 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5U)(5)(v).

• • FACTUALBACKGROUND

At the time of the July 1, 2019, due process complaint, the student was [REDACTED] years old and presents with academic and speech and language skills which inhibit her progress in the general education curriculum (R. 94; Exs. SD-2, SD-5 at 4). For the 2019/20 school year, the student attends the [REDACTED] grade at [REDACTED] High School (Exs. SD-5, SD-6). The student's eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. SD-4, SD-5 at 1, SD-6 at 1, SD-7 at 1, SD-8 at 1). 3

See 34 C.F.R. § 300.8(c)(l l); 8 NYCRR § 200. l(zz)(l 1).

The District's Board of Education has established a policy providing its resident students with (general education) transportation to the schools they legally attend, within certain mileage limits. Students attending grades 7 through 9 may receive transportation to school if they live more than l.2 miles, but less than 15 miles, from school. Students attending grades 10 through 12 may receive transportation if they live more than 3 miles, but less than 15 miles, from school (Ex. SD-3).

2Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties' respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent ' s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 120-121, 244-247; Exs. IH0-1- IHO-V).

3Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student' s educational performance. 8 NYCRR The student lives approximately 1.23 miles from the high school (R. 54, 148). Prior to the 2019/20 school year (the student's [REDACTED] grade), the student qualified for general education transportation because she lived more than 1.2 miles from school, the District minimum

(R. 147- 148, 157; Ex. SD-3). The student has not received special education transportation, per her IEP, since at least her second grade (R. 191-192). In contrast, the student's brother, receives special education transportation (R. 187;SD-10). In the 2015/16 school year, REDACTED rode the same bus as REDACTED a classmate. On November 7, 2016, it was alleged that REDACTED had threatened REDACTED. As a result, the District placed REDACTED and REDACTED on separate buses for the remainder of the 2016/17 school year and the entire 2017/18 school year. The Student resumed riding the same bus in the 2018/19 school year without incident (R. 195-196; Ex. SD-10).4 In the 2017/18 school year (while on separate buses), the parent requested that the student be permitted to ride the special education bus with her brother, (Ex. SD-10). The request was approved by the District's then-Director of Transportation, REDACTED.

Although no contemporaneous record of that approval was produced at the hearing, the District's Executive Director of Special Education, testified that the District permitted the student to take the special education bus with her brother because she qualified for general education transportation (at that time) and "it didn't make sense to have her go on a separate bus" (R. 57, 187, 201-202, 208-209; Ex. SD-10). The student continued to ride the same (special education) bus with her brother during the 2018/19 school year, her [redacted] grade school year (R. 189).

§ 200. l(zz)(l l).

4There were three adult monitors for the five students (including [redacted]) who rode the relevant

On May 31, 2019, the District's CSE convened to develop an IEP for the student for the 2019/20 school year. The CSE recommended that the student receive the majority of her instruction in departmentalized 15:1 special classes at the [REDACTED] on a ten (10) month basis. The CSE also recommended that the student receive small group speech and language therapy, two times per week (in a six-day cycle) for thirty minutes per session (Ex. SD-6 at 1).

During the May 31, 2019 meeting, the parent requested that the student remain on the bus with her brother, for the 2019/20 school year (R. 52-53). A school psychologist who chaired the meeting, explained that the student no longer qualified for general education transportation, because she lives less than three miles away from the high school (R.54, 147-148).

Additionally, [REDACTED] advised the parent that students generally qualify for special education transportation based on a "severe cognitive or physical impairment" (R. 53).

As the student did not exhibit a severe cognitive or physical impairment, the CSE determined that the student did not qualify for special education transportation (R. 53, 56; Ex. SD-6 at l 0).

The parent requested a second CSE meeting to discuss transportation (R. 59). The CSE reconvened on June 17, 2019, with the parent participating telephonically (R. 61; Exs. SD-4, SD-

5). At the outset of the meeting [REDACTED] the high school special education director who served at the meeting's chairperson, asked the parent if she had any new information or medical documentation to support her request for special education transportation (R. 61-62, 109-111, 150; Exs. SD-4, SD-5). No additional information was offered, but the parent reiterated her request that the student be allowed to ride the same (special education) bus as her brother (R. 62- special education bus during the 2018/19 school year (Ex. SD- I 0).

63, 110-111, 150). After several minutes of continued impasse, the parent advised the CSE that she would invoke her procedural safeguards and hung up (R. 111, 151; Exs. SD-4, SD-5). The CSE continued the meeting briefly in the parent's absence by discussing special education transportation and ultimately concluded that the student did not qualify (R. 151; Ex. SD-5 at I 0). This hearing ensued.

• • POSITIONS OF THE PARTIES
• • The District The District has established that the student does not qualify for general education transportation. The student does not meet the distance limitations set by the Board of Education to qualify for general education transportation. The student also does not exhibit cognitive or physical needs which would qualify her for special education transportation. The parent failed to offer any evidence at the hearing of the student ' s eligibility for either general education, or special education, transportation (R. 21-25; Exs. SD-I, SD-11).
• • The Parent The District previously provided bus transportation for the student to and from school and the parent desires a continuation of that arrangement. During a prior school year, the student's brother, received "death threats" from another student on his bus and the District agreed to allow the student to ride the bus with her brother for safety purposes. The student also has a history of asthma (R. 26-31; Ex. SD-2).
• • FINDINGS OF FACT AND CONCLUSIONS OF LAW
• • Applicable Legal Standards Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § l 400(d)(l)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230,239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.

Rowley, 458 U.S. 176, 206-07 (1982).5

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d I 86, 192 (2d Cir. 2005).

"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."' Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see TP. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247,253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional

5The term "free appropriate public education" means special education and related services that -

• • have been provided at public expense, under public supervision and direction, and without charge;
• • meet the standards of the State educational agency;
• • include an appropriate preschool, elementary school, or secondary school education in the State involved; and
• • are provided in conf01mity with the individualized education program required under section l414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-I, 580 U.S._, 137 S. Ct. 988,999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, MH, 685 F.3d at 245; A.C. v. Bd. Of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 377,381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a PAPE only if the procedural inadequacies: (a) impeded the student's right to a PAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(i)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; MH, 685 F.3d at 245; A.H v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), ajfd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejekv. Brewster Cent. Sch. Dist., 471

F. Supp. 2d 415,419 (S.D.N.Y. 2007), ajfd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.

§ 14l 5(f)(3)(E)(i). A school district offers a PAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203.

The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563,567 (2d Cir.

1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement."' See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Ed. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Ed. of Educ., 103 F.3d l l l 4, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at I 001 (holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment ("LRE"). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.l 14(a)(2)(i),

300. l 16(a)(2); 8 NYCRR §§ 200.l(cc), 200.6(a)(l); see also Newington, 546 F.3d at 114;

II

Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), ajfd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384,388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422,428 (W.D.N.Y. 2008).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(l); 8 NYCRR § 200.4(d)(2)(i); Tar/owe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law§ 4404(l)(c); see also R.E., 694 F.3d at 184-85; MP.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

• • General Education Transportation Based on the evidence contained in the hearing record, I find that the student does not qualify for general education transportation to and from her high school.

A school district must provide transportation for all children attending grades kindergarten through eighth grade who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school. See N.Y. Educ. Law § 3635(1)(a); Appeal of Radano, 59 Ed. Dept. Rep., Decision No. 17,745. Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the school district. See N.Y. Educ. Law §3635(1)(a); Appeal of Lachman, 56 Ed. Dept. Rep., Decision No. 17,039. If such transportation is provided, it must be offered equally to all students in like circumstances residing in the school district. See id.

The REDACTED School District has reduced the statutory minimums for transportation of its resident students. District policy provides the following mileage requirements for transportation eligibility: (1) kindergarten through sixth grade students must live between 0.8 and 15 miles from school; (2) seventh through ninth grade students must live between 1.2 and 15 miles from school; and (3) tenth through twelfth grade students must live between 3 and 15 miles from school (Ex. SD-3).

At all times relevant to the complaint, the student has lived more than 1.2 miles but less than 3 miles from the REDACTED High School (R. 54, 147-148, 157). Accordingly, the student qualified for and received general education transportation in the 2018/19 ( grade) school year and in years prior (R. 147-148, 157; Ex. SD-10). In the 2017/18 and 2018/19 school years, the District allowed the student to receive general education transportation by traveling on a bus with her brother, who was receiving special education transportation (R. 58, 189, 208-209; Ex. SD-10). However, as of the 2019/20 school year (the student's [REDACTED] grade year), she no longer qualifies for general education transportation because she lives less than three miles from the REDACTED High School (R. 54, 147-148). The minimum distance for general education transportation eligibility for tenth graders is three miles (Ex. SD-10). The parent does not allege that the student lives more than three miles from the high school nor does the parent allege that the District has miscalculated the distance between her home and the high school (R. 54).

Therefore, the student does not qualify for transportation as a general education student pursuant to statue or District policy.

• • Special Education Transportation Based on the evidence contained in the hearing record, I concur with the CSE and find that the student does not qualify for special education transportation to and from her high school.

The IDEA includes transportation, as well as any modification or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401(26); 34 C.F.R. §§ 300.34(a), (c)(l6). In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." See N.Y. Educ. Law§§ 4401(1)-(2), 4402(4)(a); 8 NYCRR § 200.l(ww). Specialized transportation must be included on a student's JEP if required to assist the student to benefit from special education. See Application of a Student with a Disability (Williamsville Cent. Sch. Dist.), Appeal No. 16-050 at 30 (SRO Sept. 28, 2016). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the school district must ensure that the student receives the necessary transportation at public expense. See Transportation, 71 Fed. Reg. 46576 (Aug. 14, 2006); 8 NYCRR § 200.l(ww).

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate." See Special Transportation for Students with Disabilities, VESID Mem. (Mar. 2005), available at http://www.pl2.nysed.gov/specialed/publications/policy/specialtrans.pdf. Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. See Donald B. v. Bd. of Sch. Comm'rs., 117 F.3d 1371, 1375 (11th Cir. 1997); Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 (D.S.D. 1997). When reviewing the transportation provisions made for a student by a school district, the relevant question is whether the transportation arrangements the school district made for the student were appropriate to his or her needs. See Application of a Student with a Disability (New York City Dept. of Educ.), Appeal No. 15-097 at 23 (SRO Dec. 24, 2015).

In this matter, the hearing record does not support the parent's argument that the student is entitled to transportation under the IDEA, as there is no indication in the hearing record that special transportation services are necessary for the student to receive a FAPE during the 20 l 9/20 school year. According to the credible testimony of the student's special education teacher, the student is responsible, and capable of following directions, getting from one place to another, and self-advocating for herself if she were to need assistance (R. 43, 94, 97-99, 142, 152; Exs. SD-5, SD-6). [REDACTED] further stated that the student demonstrates contextually strong communication skills and the parent has made no assertions to the contrary (R. 55, 95).

Furthermore, the student's physical levels and ability are within age-appropriate expectations, and there was no issue raised about her safety (R. 52-53, 110-111; Exs. SD-4, SD-5, SD-6). While the student has [REDCATED] her physical education teacher has not documented any relevant physical limitations (R. 96-97; Exs. SD-4, SD-5). No request for medical accommodation due to [REDACTED] was transmitted to the CSE by either the parent or the student's pediatrician. The parent stated at the hearing that the student holds a job at a local McDonald's, where she manages the cash register and makes change (R. 142, 226-228). She often walks to her job, which is three blocks away from her home (R. 226-228).

Alternatively, while the parent testified that she wanted the student to continue to receive bus transportation with her brother, [REDACTED] to be his "eyes and ears," due to concerns that may threaten [REDACTED] (R. 221), that argument is not referenced in the due process complaint (Ex.

SD-2) and is not a valid basis for transportation. See N.Y. Educ. Law§ 3635(1); Special Transportation for Students with Disabilities, VESID Mem. (Mar. 2005). It is not appropriate for a school district to place a student on a bus to protect another student. At the hearing, the District explained that the student had been allowed to take the same bus as her brother during the 2017/l 8 and 2018/19 school years due to her then-eligibility for general educational transportation and administrative convenience, not his protection (R. 187-188, 190, 208-209; Exs. SD-3, SD-10).6 When [REDACTED] resumed riding the same bus in the 2018/19 school year, the District took appropriate steps to ensure the safety of all five students riding that special education

6Indeed, when this arrangement commenced during the 2017/18 school year, the students were on bus by assigning three bus matrons to that bus (R. 190).7 To the extent that the parent also wanted the student to be on the bus with her brother because she wanted the student to be home at the same time as her brother (R. I 05, 124), while that is understandable, it is not a legally valid reason for either general education or special education transportation. See N.Y. Educ. Law§ 3635(1); Special Transportation for Students with Disabilities, VESID Mem. (Mar. 2005).

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

The parent's claim for special education bus transportation for the student for the 2019/20 school year is hereby DENIED and the parent's July 1, 2019, due process complaint is DISMISSED.

Dated: January 14, 2020

Isl Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer separate buses (R. 188-189; Ex. SD-10).

7The 2018/19 school year transpired without incident between [redacted] (R. 195-196, 224-225).

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to a State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plan to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENTS

None

SCHOOL DISTRICT

I. School District Response to Due Process Complaint, 7/19/19, 5 pgs.

• • Due Process Complaint Notice/Impartial Hearing Request, 7/1/19, 2 pgs.
• • [REDACTED] UFSD Board Policy #3601 - Mileage Limits, undated, I pg.
• • Prior Written Notice (PWN), 7/10/19, 2 pgs.
• • Individualized Education Program (IEP), 6/17/19, 11 pgs.
• • Individualized Education Program (IEP), 5/31/19, 11 pgs.
• • Individualized Education Program (IEP), 2/12/29, IO pgs.
• • Individualized Education Program (IEP), 12/22/17, 11 pgs.
• • [REDACTED] UFSD Transportation Request Forms, 2014/15 - 2019/20, 12 pgs.
• • Transportation Summary, 8/8/19, I pg.
• • School District's Memorandum of Law, 1/3/20, 17 pgs.

IMPARTIAL HEARING OFFICER

I. Confirmation of Extension, 9/23/19, 1 pg. IL Confirmation of Extension, I 0/3/19, I pg.

• • Confirmation of Extension, 10/25/19, I pg.
• • Confirmation of Extension, l l /15/19, I pg.
• • Confirmation of Extension, 12/26/19, I pg.